Airports, Industry Challenge FAA's Towers Decision

Airport and industry executives are arguing that FAA moved to eliminate funding for 149 air traffic control towers without conducting proper environmental and safety assessments in violation of federal law and are asking the U.S. Court of Appeals for the Ninth Circuit in California to mandate continued funding for the program.

Dozens of municipalities have joined in a lawsuit spearheaded by the City of Spokane, Wash., in an effort to halt FAA’s plan to drop funding for the contract towers on June 15. The American Association of Airport Executives (AAAE) and U.S. Contract Tower Association (USCTA) have also joined the growing number of lawsuits by recently filing briefs. Other associations, including the Aircraft Owners and Pilots Association (AOPA), are filing amicus curiae – or friends of the court – briefs in support of the lawsuits. FAA must now review and respond to the multiple filings.

FAA in March announced it would end funding for about 60% of the contract tower program as part of its effort to cut $600 million from the remainder of its fiscal 2013 budget as required under sequestration.

The lawsuits come as industry awaits word from FAA and the Department of Transportation on whether the agency will use funding flexibility that Congress authorized last month to continue funding the towers. Under the Reducing Flight Delays Act of 2013, Congress permits FAA to shift up to $253 million from other accounts to cover operations. FAA is using more than $200 million of the flexibility to end employee furloughs, but has not yet indicated whether or how it plans to use the remainder. A number of lawmakers have written to the agency stressing that congressional intent is for the agency to use the flexibility to continue funding the towers.

As the wait continues, Spencer Dickerson, executive director of USCTA and president, international for AAAE, says the lawsuits will keep moving forward.

A USCTA/AAAE brief calls FAA’s action to end tower funding “arbitrary, capricious … in excess of statutory jurisdiction, [and] authority [and] without observance of procedure required by law.” The Administrative Procedures Act requires courts to set aside federal actions that are arbitrary, capricious, an abuse of discretion or not in accordance of law. The brief argues that FAA performed only a cursory review before making its decision, and as a result ignored safety and efficiency concerns, and failed to provide any reasoned analysis.

The associations’ brief contends that FAA failed to determine whether the closure of the towers was consistent with its mandate to “develop plans and policy for the use of the navigable airspace necessary to ensure the safety of aircraft and the efficient use of airspace,” and ensure a safe and efficient national transportation system. The brief also contends that the agency failed to meet federal requirements to analyze the environmental impact of closing 149 air traffic control towers.

“FAA ignored the significant safety and efficiency effects of such closures on the national airspace system, including the inevitable increased delays and noise impacts at other airports from re-routed aircraft, cessation of commercial air carrier service, increased fuel consumption, economic harms to the airports, and direct and indirect job losses in affected regions,” the brief states.

The brief also notes harm to airports and communities that will lose revenue, become more reliant on federal grants, and possibly lose transportation links to the national and international marketplaces.

The associations acknowledge FAA may argue that it should have deference in its budget sequestration decisions, but they argue that FAA did not provide any reasoned explanation or detailed analysis. FAA is required to examine relevant data and explain its actions, the brief says. “A review of the paltry record that existed at the time FAA made its decision demonstrates that the agency failed to undertake any reasoned analysis regarding safety and efficiency,” the brief says. “A review of the entire post hoc record reveals nothing more than a safety review that is lackluster, at best.”

Meanwhile, a joint brief filed by Spokane on behalf of numerous local authorities echoes many of the same arguments. Records show that most analysis of the FAA decision came after the agency decided to revoke tower funding, the groups contend in their brief. “The pre-decisional record fails to show that FAA prioritized air safety in deciding to close the contract towers. This is a textbook case of arbitrary agency action,” the groups say, adding, “FAA abandoned its own established procedures and regulations for thoroughly evaluating changes to critical safety elements like the towers.” These include safety risk management analyses.

The groups further argue that FAA is required to apply sequestration cuts evenly, but sequestration’s mandate doesn’t necessarily demand cuts in the contract tower program. Further, sequestration laws do not eliminate FAA’s statutory requirements for safety, environmental mandates or other obligations, the brief contends.

The groups underscore the safety services provided by the towers, along with the fact that they are less expensive than federal towers. They also cite congressional mandates for FAA to continue the program and extend it as “practicable.” But the brief says, “FAA has exhibited some reluctance to continue this program.”

AOPA, meanwhile, tells the court in its amicus curiae brief filed this week that FAA’s decision was “based solely on the number of operations conducted at the airport and how that number affects the traveling public” and does not account for numerous considerations that played into establishing and maintaining each tower.

FAA overlooked “the management of (aircraft) approaching, landing, and departing the airport, the access to the airport, any accident and incident avoidance measures on and in the vicinity of the airport, the local and national impact on traffic diverted to other airports, the public’s health and welfare, the public interests, and environmental impact changes,” AOPA says.